Magar Subhas Chandra v. Torture Claims Appeal Board and Another

HCAL 2716/2019

[2023] HKCFI 1450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2716 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Nepal who arrived in Hong Kong on 11 April 2014 as a visitor with permission to remain as such up to 18 April 2014 when he did not depart and instead overstayed, and was arrested by police one month later on 17 May 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his girlfriend’s family who objected to their relationship. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Jhapa, Nepal where his parents were poor farmers. While in secondary school he met his girlfriend who was from a wealthy family and her father was a landowner.

3.Upon later discovering of their relationship, his girlfriend’s father demanded the Applicant to stop seeing his daughter, and when they continued to see each other, her father then sent men to threaten and beat up the Applicant.

4.Later when the Applicant was told by his girlfriend that her father had made arrangements for her to marry some other man, they eloped to Kathmandu in early 2014, for which her father falsely accused the Applicant of kidnapping his daughter to the police, and vowed to find and kill him, and after one occasion when the Applicant was attacked by some unknown men with knives on the street in Kathmandu but managed to escape without serious injuries, the Applicant suspected that they were sent by his girlfriend’s father and felt it was no longer safe to remain in Nepal, and so on 11 April 2014 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 29 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s family upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities where it would be difficult if not impossible for his girlfriend’s family to locate him. 

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 19 July 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 May 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his girlfriend’s family for fleeing Nepal for Hong Kong, and that even if true that his problem with his girlfriend’s family was a private personal dispute between them without any state or official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.      

9.Meanwhile on 19 May 2017 the Director in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any such additional information from him, the Director by a Notice of Further Decision dated 6 June 2017 also rejected his claim under BOR 2 ground upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

10.The Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he attended another oral hearing on 24 April 2019 before the Board during which he gave further evidence and also answered questions raised of his claim by the same Adjudicator for the Board, and on 12 September 2019 his appeal was again dismissed by the Board which also confirmed the Director’s Further Decision upon finding no additional evidence from the Applicant in support of his BOR 2 Claim and that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground or that he will face any such risk upon his return to Nepal.

11.On 17 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That he was not provided with any legal representation for his BOR 2 Claim before the Director or the Board which is both unfair and unlawful to him as a non-refoulement claimant;

(2)  That he was not provided with any language assistance for his BOR 2 Claim before the Board which was procedurally unfair to the Applicant in the process of his non-refoulement claim;

(3)  That the Board’s decision has never been read or translated to him that he is deprived of the opportunity to make a full application for leave to apply for judicial review of the Board’s decision which is also procedurally unfair to the Applicant;

(4)  That it is completely unreasonable and unacceptable for the Director and the Board to find that he can relocate to other part of Nepal to run away from his problem and to live in hiding which is clearly inhumane and cruel and a violation of the spirit of non-refoulement protection;

(5)  That it is procedurally unfair for the Board to find issues with his credibility without providing him any opportunity to explain or clarify those issues during his appeal hearing before the Board.   

12.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

14.As for his complaint under Ground (2) of not being provided with any language assistance for his appeal before the Board which is simply factually incorrect as he was clearly assisted by an interpreter throughout both his appeal hearings before the Board during which he never raised any issue over the matter in either hearing. As such and in the absence of any particulars or specifics to demonstrate that the basis of his claim might have either been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

15.Regarding his Ground (3) of not being read or translated the decision of the Board to enable him to have a full understanding thereof so as to assist his leave application for judicial review which cannot in my view by itself per se be accepted as a valid complain or ground for his intended challenge, and that in any event it is clear that he did subsequently have legal assistance with his present application that there is simply no basis in this complaint of the Applicant.

16.As for his complaint in Ground (4) over the Board’s assessment of the availability of internal relocation to negate his alleged risk of harm from his girlfriend’s family which even on the factual basis of his own case at the highest is a private personal dispute without any evidence of state or official involvement that any such risk even if true would be negated by internal relocation, and in the absence of any error of law or irrationality in such determination being clearly and properly identified and elaborated by the Applicant, I do not find any merits in this complaint of the Applicant either.

17.As for his complaint under Ground (5) of not being given the opportunity during his appeal hearing to explain or clarify any credibility issues raised by the Adjudicator over his claim, which is clearly factually incorrect as according to the Board decision the Adjudicator did during the hearing clearly draw the Applicant’s attention to those issues and also invited him to respond to them (see [9] – [16] of the Decision) before the Board proceeded to make its determination in the decision ([17] – [20]). As such and in the absence of how the Applicant might have been so prejudiced, and on the factual basis of even his own case at the highest that his claim simply did not engage the BOR 2 ground, I do not find this complaint of the Applicant reasonably arguable for his intended challenge either.

18.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.The fact is that it has also been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.               

20.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.Furthermore, the Applicant has recently filed an affirmation requesting to “close” his case as he would like to go back to his home country as “everything is okay” now in Nepal.

22.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 30^th day of May 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1